ARTICLE SUBMITTED FOR PUBLICATION IN FLORIDA BAR JOURNAL - - PDF document

ARTICLE SUBMITTED FOR PUBLICATION IN FLORIDA BAR JOURNAL – ANTICIPATED PUBLICATION DATE: JUNE 2011 When Can a Lawyer Communicate With Your Client? By Marion J. Radson On December 10, 2010, The Florida Bar Board of Bar Governors unanimously approved Ethics Opinion 09-1. The Opinion concludes that a lawyer may not communicate with government officers, directors or employees who are directly involved or whose acts can be imputed to the government entity in a represented matter about the subject matter of the

• representation. To fully understand the Opinion, this article addresses the events leading up to

the adoption of this Opinion, reviews previous Opinions that form the basis for Opinion 09-1, and discusses the application of the no contact rule for all attorneys. Events Leading to Opinion 09-1 A law firm regularly represented clients before a state agency known as the Office of Financial Regulation (“OFR”).1 An attorney from the firm contacted employees of OFR to

• btain information and, in some cases, statements to be used in potential administrative

proceedings and litigation against the agency. OFR’s general counsel, in conjunction with the division director, informed the attorney that all communications with OFR employees must be made through the agency’s general counsel. The attorney initially sought a staff opinion from The Florida Bar’s ethics hotline. After being informed that communications must be made through OFR’s general counsel on represented matters, the attorney sought an informal Florida Bar Staff Opinion.2 Florida Bar Ethics staff issued Opinion 28193 on July 15, 2008. The Staff Opinion concluded that Rule 4-4.2 prohibited the attorney from communicating with OFR employees

“who are in a managerial position or whose act or omission in connection with the (represented) matter may be imputed to the agency or entity, unless the agency’s attorney consents to the communication.” The attorney sought reconsideration of the Staff Opinion by the Professional Ethics

• Committee. The Professional Ethics Committee, through a subcommittee, developed a different
• pinion. As required by the rules of The Bar, notice was published soliciting comments on this

proposed Opinion. In January 2010, the Committee, after hearing arguments on both sides of the issue, but particularly in opposition from representatives of the City, County and Local Government Law Section, the Government Lawyers Section, and the Florida Association of County Attorneys, approved the Opinion by a vote of 15-11.3 Formal appeals to the Board of Governors were filed by OFR, the City, County and Local Government Law Section, and the Florida Association of County Attorneys (“appellants”). In accordance with the Board’s rules, the Board Review Committee first heard the appeal and made a recommendation to the Board of Governors. In the interim, the appellants worked with Bar staff to revise the Opinion to address specific objections. With one exception noted below, the Board Review Committee recommended approval of the revised Opinion. The Board of Governors, at its meeting on December 10, 2010 voted unanimously to approve Opinion 09-1. Opinion 09-1 involves the application of Rule 4-4.2. The fundamental principle underlying Rule 4-4.2 “Communication with Person Represented by Counsel”, commonly known as the “no contact rule”, is that a lawyer may not communicate with a represented person without the consent of the other person’s lawyer. The rationale behind the rule is to prevent interference with the attorney-client relationship and to

prevent a lawyer from persuading a represented person to act or make disclosures contrary to the person’s interests.4 The Rule’s prohibition applies when two elements are met: (1) the communication relates to the subject matter of the representation; and (2) the lawyer has knowledge of the

• representation. Knowledge of the representation may be inferred from the circumstances. An

exception to the prohibition permits an attorney to communicate with another attorney’s client “to meet the requirements of any court rule, statute or contract requiring notice or service of process directly on an adverse party.”5 In these instances, contact is permitted and a copy must be provided to the adverse party’s attorney. The application of the Rule becomes complex in an organizational setting. Does the prohibition apply to every officer, employee or agent of the organization? If the organization retains full-time in-house counsel, does the Rule prohibit all communications on all matters? Can the in-house counsel bar all communications with all officers and employees of the

• rganization?

The application of the Rule becomes even more complex in the government context. Florida’s broad Government-in-the-Sunshine Law and expansive Public Records Law add additional layers of inquiry above those inherent in an organizational setting. Does a lawyer have the right to address a public body in a public meeting regarding a represented matter? Can a lawyer request public records directly from a public employee regarding a represented matter? Can a lawyer contact a government official to seek redress of a client’s claim or grievance before the government? These issues have been the topic of heated debate in Florida and around the country.

When does the prohibition begin? When does Rule 4-4.2 apply to prohibit communications with a represented person? Is it necessary for litigation or an administrative process to commence? The simple answer is no. The Rule applies when the attorney-client relationship is established. In Florida Ethics Opinion 78-4, which is cited for other purposes in Opinion 09-1, the Ethics Committee unanimously concluded that the Rule applies whenever the attorney-client relationship is established in regard to a particular matter.6 Opinion 09-1 extends the prohibition to “…matters on which litigation has not yet commenced, as well as to specific transactional or non-litigation matters on which the agency’s lawyer is providing representation.” To whom does the prohibition apply in the corporate or government context? Florida Ethics Opinion 09-1 addresses to whom the prohibition applies in the government

• context. Opinion 09-1 relies on the conclusions reached in previous Florida Ethics Opinions.

In Florida Ethics Opinion 78-4, the Committee concluded that prohibited communications extend to “officers, directors or managing agents” of a private corporation. The Committee did not extend the Rule to other employees “unless they have been directly involved in the incident or matter giving rise to the investigation or litigation.” In a later Florida Ethics Opinion, 87-2, the Committee applied the guidelines of Opinion 78-4 to government entities, extending the communication bar to any government employee whose acts or omissions in connection with the matter can be imputed to the government. The Committee declined to treat government entities differently from private entities despite public policy arguments based on the government’s responsibility to the public at large. Opinion 09-1 concludes that an attorney must obtain the consent of the government lawyer prior to communicating with a government officer, director or manager, as well as

employees who are directly involved in the matter. The bar extends to public officials or employees whose acts or omissions may be imputed to the state agency. Must a Communicating Attorney know that the person is represented? The application of Rule 4-4.2 presupposes that the attorney “knows” that the person is

• represented. The word “knows” is defined in the terminology section of the Rules as “actual

knowledge of the fact in question. However, a person’s knowledge may be inferred from circumstances.”7 Opinion 09-1 permits an attorney to communicate with government employees on “specific matters” that the attorney knows have not been referred to or handled by the government attorney. In that instance, Opinion 09-1 instructs an attorney to apply Rule 4-4.3 “Dealing with Unrepresented Persons.”8 Rule 4-4.3 imposes a duty on an attorney to inquire whether a person is represented in a specific matter. In the government context, Opinion 09-1 concludes that if the attorney does not know whether the public official or employee is represented in the matter, the attorney “should inquire whether the person is represented in the matter” and “identify himself or herself to the public official or employee as a lawyer representing a client.” The summary of Opinion 09-1 includes cautionary language that the right to communicate directly with government officers and employees on matters unrelated to the specific legal representation must not be used as a “…vehicle for engaging in communications that are barred by the rule.” Additionally, the Comment to Rule 4-4.2 provides that a lawyer cannot evade the requirement of obtaining consent “by closing eyes to the obvious.”

Are communications prohibited just because the entity retains general counsel? The difficult issue at the crux of Opinion 09-1 is whether the existence of general counsel acts to bar all communications with government employees whose acts can bind the governmental entity. This issue is addressed in Opinion 09-1 as to government entities, and as to all other organizations in earlier ethics opinions. Rule 4-4.2 states: “[i]n representing a client, a lawyer shall not communicate about the subject of the representation.” (e.s.) The Comment clarifies the restriction: “This rule does not prohibit communication with a represented person, or an employee or agent of such a person, concerning matters outside the representation.” (e.s.) Opinion 09-1 reaffirms the ability of a lawyer to communicate “with represented persons, including protected (government) employees, on matters other than specific matters for which the (government) lawyer is providing representation...” Reference is made to Florida Ethics Opinion 94-4. In Opinion 94-4, the Ethics Committee concluded that an attorney who, on behalf of a client, filed suit to collect a credit card debt could communicate with a person about a different matter in litigation. The individual was represented by legal counsel in a separate matter, namely collection violations. In that instance, the Committee suggested that the attorney notify opposing counsel that “the attorney intends to deal directly with the person on the litigation case only, and that, regarding the collection violations case, the attorney will limit all communications to the

• pposing counsel.” The Committee further suggested that “[t]he attorney might consider

copying the opposing counsel with the attorney’s correspondence to the person regarding the litigation case, so that there is no question as to the communications made.”

Opinion 09-1 approved the rationale expressed in Opinion 78-4 that addressed the application of Rule 4-4.2 to particular persons in a corporate context. As previously stated, Ethics Opinion 78-4 bars direct communications with officers, directors or managing agents who have been directly involved in the represented matter, or whose actions may be imputed to the

• rganization. In these instances, communications must be made through the general counsel.

Opinion 09-1 acknowledges that the Ethics Committee deciding Opinion 78-4 “declined to adopt a rule that would prohibit all contacts with organizational employees no matter how removed from the conduct in question.” Thus, a blanket prohibition in the private sector is not

• permissible. In regard to government entities, a blanket communication bar is likewise not

supported either in the Rule or under the ethics opinions. Opinion 09-1 concludes that an absolute bar is not the “intent” of the Rule. What is the scope of “permitted communications” with government entities? Up until now, the prior questions asked in this article have been answered by ethics

• pinions, including 09-1. However, the answer to the question asked in this section is not

directly answered in any opinion. A review of the legislative history of the Rule and informal

• pinions of Bar staff provide guidance. A discussion necessarily involves the application of

Florida’s Government-in-the-Sunshine Law and Public Records Law. Rule 4-4.2, as related to this issue, is unique to Florida. This Rule differs in one major respect from the comparable Model Rule 4.2 of the American Bar Association (“A.B.A.”) and the rules of practically every other state. A.B.A. Model Rule 4.2 provides: “In representing a client, a lawyer shall not communicate about the subject matter of the representation …unless the lawyer…is authorized to do so by law or court order.” (e.s.) Opinions from other jurisdictions interpreting the “authorized by law” exception conclude that such fundamental

rights, such as the First Amendment and the right of citizens to redress grievances to public

• fficials, may fall under the “authorized by law” exception.

Florida Bar Rule 4-4.2 does not provide the “authorized by law” exception. This exception has been omitted from Florida’s rules since the original adoption of The Bar’s version

• f the Model Rules that became effective in 1987. No reason appears in Committee notes. The

Florida Supreme Court adopted the Rule as recommended without comment.9 Other state ethics opinions and court rulings construing the “authorized by law” exception, including A.B.A. ethics opinions, are not relevant to Florida’s Rule. In 2002, a Special Committee to Review Rule 4-4.2 was created to consider adding the “authorized by law” exception to the Rule. The Committee recommended that the Rule remain as written.10 Of significance, the Committee recommended the deletion of the “authorized by law” term that appeared in the Comment to the Rule.11 In its place, the Committee substituted the new term “permitted communications” to “resolve the conflict between the Rule and the current Comment.” The revised Comment was adopted by the Florida Supreme Court.12 The term “permitted communications” generated the debate and controversy culminating in the adoption of Proposed Advisory Opinion 09-1 by the Professional Ethics Committee and the ensuing appeal. The Comment currently provides: “…(A) lawyer having independent justification for communicating with the

• ther party is permitted to do so. Permitted communications include, for

example, the right of a party to a controversy with a government agency to speak with government officials about the matter.”13 Any consideration of what are “permitted communications” must begin with the legal effect of the comments that follow each Rule. The Preamble to the Rules provides that “(t)he comments

are intended only as guides to interpretation, whereas the text of each rule is authoritative.14 Thus, the comments cannot be used as specific authority to support or reject proper conduct under the Rules. Under Rule 4-4.2, there are specific areas in which an attorney can communicate with a represented person without consent, as addressed earlier in this paper. Outside these specific areas, the “independent justification” parameters of “permitted communications” with government officials and employees is not addressed. In Florida, specific state statutes or local ordinances or rules may provide the “independent justification” for “permitted communications”. For example, Florida’s Whistle- blower’s Act may provide an attorney, acting on behalf of a client, the limited authority to communicate with a government official to disclose wrongdoing.15 Providing direct notice of a tort claim to a government official is also permitted.16 Some commentators argue that the constitutional right of free speech and the right of the people to petition the government to redress grievances provide the right for an attorney to communicate directly with the government. But no authority translates these rights as an exception to Rule 4-4.2.17 The Open Meetings and Public Records Laws of Florida also pose unique issues to state and local governments.18 Neither the Rules nor any ethics opinions cite these laws as “independent justification” for an attorney to communicate with a government official or the governing body in a public meeting in a represented matter. This is appropriate because such matters are beyond the scope of the Rules and an ethics opinion. Any right would exist independent of the Rules.19

In the very recent case of Keesler v. Community Maritime Park, 32 So.2d 659 (Fla. 1st DCA 2010), the appellate court, citing a 1983 Florida Supreme Court decision, made it clear that that the public has no general right to speak at public meetings.20 If the public has no right to speak, then neither would an attorney representing a client possess such right. A government may itself invite “permitted communications”. It may receive public comment on certain matters under its own procedural rules or applicable substantive law.21 In that instance, the government is expressly permitting any person to address specific matters, including matters that may be in litigation. If a person can address the public officials at the invitation of the government, then an attorney representing the person should be allowed to address the government official(s) in a public meeting without the consent of the government

• attorney. The government attorney is typically present at these meetings to provide the

necessary safeguards inherent in the Rule. Any concerns of the government can be addressed by imposing reasonable time, place and manner restrictions on the communication. As to Florida’s Public Records Law22, in TEO 91001 the Bar ethics staff opinion concluded that when a matter is in litigation an attorney can only request public records from the government attorney. Last year, the Florida Bar Professional Ethics Committee sought to revisit this issue and considered issuing a formal opinion. Proposed Advisory Opinion 10-1 was withdrawn and is no longer under consideration. Therefore, if a matter is in litigation, an attorney must request records through the government attorney. Opinion 09-1 makes no reference to “permitted communications”. The appellants recommended language that would instruct attorneys to provide courtesy notice to government attorneys whenever communicating with government officials and employees based upon the rationale of a formal A.B.A. Ethics Opinion.23 However, Opinion 09-1 omits such language.

Due to the lack of specific guidance, an attorney claiming “independent justification” for an arguable “permitted communication” would exercise good practice by providing courtesy notice to government attorneys. Opinion 09-1 instructs an attorney who does not know if a public official or employee is represented in a matter to ask the government attorney if the person is represented. In all instances, the attorney must identify himself or herself as a lawyer who is representing a client.24 Conclusion Rule 4-4.2 prevents interference with the attorney-client relationship and prevents a lawyer from persuading a represented person to act or make disclosures contrary to the person’s

• interests. For these reasons, an attorney needs consent when communicating with the other

lawyer’s client. The Rule applies when communicating with a private person or an

• rganizational entity. The communication bar applies to officers, managing agents and

employees who are directly involved in the represented matter. The Rule does not support a communication bar on all officers and employees simply because the entity retains a general

• counsel. The bar applies to represented matters referred or handled by the general counsel.

The same bar applies to communications with government officials and employees. Communications should be made through government counsel on all known represented matters. If an attorney does not know if a public official or employee is represented in a matter, the attorney should ask the government attorney. In all instances, the attorney must identify himself

• r herself as an attorney who is representing a client.

1 OFR is charged with the administration and enforcement of the Florida Financial Institutions Codes relating to

state-chartered banks, credit unions, trust companies and international bank offices.

2 The attorneys in the Florida Bar Ethics Department provide informal advisory ethics opinions to members of The

Florida Bar. They provide guidance to attorneys regarding future, not past action, and are not considered a substitute for the decision of a court or a grievance committee. See The Florida Bar Procedures for Ruling on Questions of Ethics on the bar’s website.

3 The Professional Ethics Committee is composed of 41 members. Therefore, a majority of the full membership did

not vote to approve the Draft Opinion. Several members who voted in the minority asked to prepare a dissenting

• pinion, but the Committee declined to entertain such a request.

4 See Special Committee to Review Rule 4-4.2 Report to the Florida Board of Bar Governors, October 25, 2002. 5 West’s F.S.A. Bar Rule 4-4.2(a) 6 The Comment to the Rule supports this conclusion: “This rule applies to communications with any person who is

represented by counsel concerning the matter to which the communication relates.”

7 “Terminology”, Preamble, Section 4, Rules of Professional Responsibility. 8 “(a) In dealing on behalf of a client with a person who is not represented by counsel a lawyer shall not state or

imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding…” The term “[r]easonably should know” is also defined in the Terminology section to mean a lawyer “…of reasonable prudence and competence to ascertain the matter in question.”

9 The Code of Professional Responsibility was replaced by the Rules of Professional Conduct, effective January

1, 1987. The Fla. Bar Re Rules Regulating The Fla. Bar, 494 So. 2d 977 (Fla.), opinion corrected by 507 So. 2d 1366 (Fla. 1986). In June 1989 the Professional Ethics Committee published a proposed ethics opinion incorporating the additional ABA language, “or is authorized by law to do so”, into the Rule. In response to comments from Florida Bar members, the Committee, at the direction of the Board of Governors of The Florida Bar, narrowed the language and issued Opinion 89-6. The Committee intentionally omitted the exception for communications authorized by law. Furthermore, another of the Committee’s opinions regarding the communication rule, Opinion 90-4, relies upon Florida’s omission of the “or is authorized by law” exception.

10 The Committee determined that The Bar had previously not included the “authorized by law” exception

because it is broad and potentially delegates the Supreme Court’s authority to regulate the practice of law to the legislature. Report to the Florida Bar Board of Governors, October 25, 2002.

11 The Florida Rules were patterned after the ABA’s Model Rules. When the Rules were adopted in Florida,

the “authorized by law” language was omitted from the Rule. However, the comment did not exclude the holdover “authorized by law” term.

12 In Re: Amendment To The Rules Regulating the Florida Bar, 875 So.2d 448 (Fla. 2004). 13 Comment to Rule 4-4.2, Para. 4 last sentence. 14 See Preamble, Rules of Professional Conduct, Chap. 4. 15 FLA.STAT. § 112.3187 (2010). The information must meet certain thresholds that create and present a

substantial and specific danger to the public’s health, safety and welfare, or involve an act of gross mismanagement, misfeasance, malfeasance or gross waste of public funds.

16 FLA. STAT. § 768.28(6)(a) requires notice prior to initiating a lawsuit against the state or local government. 17 Florida Bar Staff Opinion 16715 states that an attorney may not directly contact officers, directors, or

managing agents of a government agency, or persons who were directly involved in the matter, whose acts or

• missions could be imputed to the agency, or whose statements could constitute admissions of the agency if

the agency is represented by counsel in the matter in which the attorney wishes to contact the agency; Florida Bar Staff Opinion 16237 states that an attorney representing a client suing government officials represented by counsel who wishes to write the officials directly to inform them of an adverse ruling by an arbitrator may

• nly contact the officials as allowed by Rule 4-4.2, which does not contain the “authorized by law” exception;

Florida Bar Staff Opinion 18716 states that an attorney may advocate on a client’s behalf at a public hearing held by the government with advance notice to the government counsel; and Florida Bar Staff Opinion 22053 states that a lawyer may not directly contact a county commissioner whose acts or omissions can be imputed to the government or whose statements may constitute an admission on behalf of the government when the county is represented by counsel in the matter that is the subject of the communication.

18 Fla. Const. Art. 1, §24; §119.011, F.S.; §286.011, F.S. 19 See Scope, Rules of Professional Responsibility, Chap. 4. 20 2011 Florida House Bill No. 285 and Companion Senate Bill No. 310 would require local governmental

bodies to receive public comment under certain requirements. Bills are pending in the 2011 Legislature at time of deadline for publication.

21 See, e.g., Sec. 166.041(3)(c) relating to zoning and land use matters; Sec. 200.065, (2)(e), F.S. relating to the

adoption of an annual budget.

22 Sec. 286.011, F.S. 23 American Bar Association Formal Ethics Opinion 97-408 concludes that the lawyer must give the government

lawyer reasonable advance notice of his or her intent to speak with that official about the matter in which they are

• represented. Thus, even though direct communication may be permissible under the A.B.A.’s “authorized by law

exception” Opinion 97-408 would instruct the attorney to provide the government lawyer with prior notice of any intended contact with government officials and employees who are represented by the government’s lawyer.

24 Florida Ethics Opinion 09-1, page 5 (December 10, 2010).